Attorneys are held to strict compliance in
advertising, but there is some subjective nature to certain forms of
advertising (radio, television, direct solicitation letters and websites).
However, clearly false and misleading representations in advertising and
paying others (non-lawyers) for referrals is specifically precluded. These guidelines are outlined here: Rules of Professional Conduct.
I mention this because I happen to advertise on occasion via my
website and have utilized such services as Bing advertising and Google Adwords
campaigns. I recently saw an advertisement of a competitor who claimed in
their particular Adwords ad that they had the "Best DUI Dismissal Rate in
Seattle." Okay, some say maybe that is just hyperbole, but I say it
is a clear misrepresentation of that firm's success in an attempt to mislead
prospective clients
RPC 7.1 states:
A lawyer shall not make a false or misleading communication about
the lawyer or the lawyer's services. A communication is false or misleading if
it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially
misleading.
Here, the statement by the attorney that they have the "Best
DUI Dismissal rate" is clearly a materially misleading statement because
without some sort of checks and balances or foundation for comparison with
other attorneys’ dismissal rates, it clearly is a false communication to a
prospective client.
Another popular approach to advertising I have seen is to send
direct solicitation letters to persons arrested for various offenses. Now
many of my colleagues find this practice deplorable, but under the rules it is
allowed. It is barely allowed, but allowed.
RPC 7.3 (a) states: A "lawyer shall not directly or
through a third person, by in-person, live telephone, or real-time electronic
contact solicit professional employment from a prospective client when a
significant motive for the lawyer's doing so is the lawyer's pecuniary
gain..."
Now that seems pretty clear, "a lawyer shall not
directly...solicit professional employment from a prospective client..."
However, comment (2) to this rules allows for the mailing of letters.
Comment (2) to RPC 7.3: This potential for abuse inherent in
direct in-person, live telephone or real-time electronic solicitation of
prospective clients justifies its prohibition, particularly since lawyer
advertising and written and recorded communication permitted under Rule 7.2
offer alternative means of conveying necessary information to those who may be
in need of legal services. Advertising and written and recorded communications
which may be mailed or autodialed make it possible for a prospective client to
be informed about the need for legal services, and about the qualifications of
available lawyers and law firms, without subjecting the prospective client to
direct in-person, telephone or real-time electronic persuasion that may
overwhelm the client's judgment.
Again, many of us do not like this approach because of the
intimidating language used by these attorneys. They utilize words such as
"you are facing jail" "you could go to jail for a year!"
etc. I believe it is tacky, but allowed.
The final advertising approach I wanted to address is having
others refer business to you; for example, having tow truck drivers give out
your card to every DUI arrestee who picks up their car after they are released
by law enforcement. This approach is addressed by RPC 7.2.
RPC RULE 7.2 ADVERTISING (a) Subject to the requirements of Rules
7.1 and 7.3, a lawyer may advertise services through written, recorded or
electronic communication, including public media. (b) A lawyer shall not give
anything of value to a person for recommending the lawyer's services, except
that a lawyer may (1) pay the reasonable cost of advertisements or
communications permitted by this Rule; (2) pay the usual charges of a legal
service plan or a not-for-profit lawyer referral service; (3) pay for a law
practice in accordance with Rule 1.17; and (4) refer clients to another lawyer
pursuant to an agreement not otherwise prohibited under these Rules that
provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and (ii) the client is
informed of the existence and nature of the agreement. (c) Any communication
made pursuant to this Rule shall include the name and office address of at
least one lawyer or law firm responsible for its content.
Comment (5) to RPC 7.2: Paying Others to Recommend a
Lawyer - Lawyers are not permitted to pay others for
channeling professional work. Paragraph (b)(1), however, allows a lawyer to
pay for advertising and communications permitted by this Rule, including the
costs of print directory listings, on-line directory listings, newspaper ads,
television and radio airtime, domain-name registrations, sponsorship fees, banner
ads, and group advertising. A lawyer may compensate employees, agents and
vendors who are engaged to provide marketing or client-development services,
such as publicists, public-relations personnel, business- development staff and
website designers. See Rule 5.3 for the duties of lawyers and law firms with
respect to the conduct of non-lawyers who prepare marketing materials for them.
This means that if a lawyer pays a tow truck driver or tow lot
where someone had their car impounded to hand out their card, they are very
likely in violation of this rule if they gave anything of value for that
potential referral.
Obtaining DUI clients is extremely competitive in the Puget Sound
area and I am all for advertising, but attorneys need to ensure they are abiding
by the RPCs when attempting to garner business. I've had many potential
clients ask if I will bend the rules in their case and my answer is always
"My bar card is more valuable than any potential client." The
same goes for advertising.
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer. His practice of 10 years emphasizes DUI defense. He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com
